Holterman v. Holterman

¶1I think the decision of Supreme Court, which the Appellate Division affirmed, is flawed in three ways. First, it fails to consider or justify the total burden that the multiple rulings it contains place upon defendant. Secondly, it adopts an illogical and unfair method of allocating the parties’ income for purposes of calculating child support payments. And thirdly, it applies our decision in O’Brien v O’Brien (66 NY2d 576 [1985]) on facts totally opposite, in material respects, to the facts of O’Brienitself—resulting in an application of O’Brienthat does no good at all, but does considerable harm. For all these reasons, I dissent from the majority’s decision to affirm.

¶2I

¶3In a 27 page opinion, Supreme Court made detailed findings of fact and a series of discrete rulings, including awards of maintenance, child support, equitable distribution and attorneys’ and expert fees. In justifying each of these rulings, the court referred to the appropriate statutory and other factors. Only one thing is missing from this otherwise meticulous analysis: Supreme Court never even mentions, much less evaluates, the cumulative impact of its rulings.

¶4That impact is to impose a very significant burden on defendant—to require him, for several years, to pay to his ex-wife more than two thirds of his net income, and even in the more distant future to pay her as much as he keeps for himself. Defendant’s brief in this Court contains the following chart, which summarizes the burden on him in the first year following Supreme Court’s award:

Income $181,837 Minus PICA (1233) ($7,403) Minus Maintenance ($35,000) Minus Taxes ($46,882) Minus Child Support ($34,875) Minus Equitable Distribution (with interest) ($21,288) Minus Attorney’s Fees ($20,000) NET MONEY AVAILABLE FOR DEFENDANT APPELLANT $16,389

¶5Plaintiffs brief notes, correctly, that the $20,000 attorneys’ fee payment is a one-time obligation. With that exception, *17however, plaintiff takes no issue with the above-quoted calculation. Even if the attorneys’ fees are ignored, defendant is left with approximately $36,000 of a pretax income of $181,000.

¶6It is true that the burden on defendant remains at this level only for four years after the award; after that, child support will be reduced because the parties’ older child will become emancipated, and a year later maintenance will drop to a lower level pursuant to Supreme Court’s order. But even then, the burden will be a major one. My own calculations suggest that, assuming defendant’s income does not much change (and again ignoring the attorneys’ fee award) defendant is required to pay more than two thirds of his after-tax income to plaintiff for the first four years; some 60% in the fifth year; about half of it in years 6 through 10; and nearly a third of it for five years after that. It is not until 15 years after the award that defendant’s obligations (at that point consisting only of maintenance) diminish to something like 12% of his income (calculating both the income and the obligations on an after-tax basis).1

¶7I do not assert that the imposition of this level of burden on defendant is, as a matter of law, an abuse of discretion. It is possible that a careful comparison of defendant’s resources and needs with the needs of plaintiff and the children would justify it. I do suggest, however, that it was an abuse of discretion for Supreme Court not even to consider whether the overall result of its various awards was fair. Indeed, it is not clear from Supreme Court’s opinion that the court was even aware of the cumulative impact of its rulings. One portion of the opinion suggests that it was not: In awarding attorneys’ and expert fees, the court listed the factors that it considered—the first of them being “[t]he gross disparity between plaintiffs and defendant’s income.” Supreme Court may not have realized that, giving effect to decisions it had made earlier in its opinion, the “disparity” would be for several years in plaintiffs favor.

¶8I would therefore vacate Supreme Court’s judgment and direct Supreme Court to reconsider it, giving due weight not just to the components of its rulings, but to their cumulative impact.

¶9*18II

¶10In calculating child support, Supreme Court began, as the Child Support Standards Act (CSSA) requires, by considering the income of each party. It proceeded, however, on the false assumption that the income of each (prior to making the deductions permitted by statute) would be what it was before the divorce. This assumption was necessarily false, because Supreme Court’s equitable distribution award required the transfer from defendant to plaintiff of 35% of the value of a significant income-producing asset.

¶11Supreme Court, applying our decision in O’Brien, treated as a marital “asset” what it described as “[t]he marital portion of the enhanced earning capacity of defendants’s [sic] medical education, medical degree, medical license, residency and Board Certification in emergency medicine.” In the next section of this dissent, I will try to show that it was error to apply O’Briento this case, but Supreme Court did apply it, and I assume for purposes of this section of my opinion that Supreme Court was correct to do so. Indeed, to simplify matters, it is useful for present purposes to put aside the conceptual complexities of O’Brienand to analyze defendant’s medical license as though it were any other income-producing asset—corporate stock, for example, or real property held for investment.

¶12When income-producing property is owned by a husband or wife who is divorced, it is often appropriate to order part or even all of it equitably distributed to the other spouse. When that is done, however, it makes no sense at all to calculate child support as though no such distribution had occurred—as though the transferring spouse still owned the asset and received the income it generated. Yet the majority concludes that this irrational procedure is required by the CSSA—as indeed it would be, except that the CSSA expressly permits departure from its formula to avoid an “unjust or inappropriate” result.

¶13The starting point for calculating a parent’s income under the CSSA is that parent’s “gross (total) income as should have been or should be reported in the most recent federal income tax return” (Domestic Relations Law § 240 [1-b] [b] [5] [i]). In other words, income is normally allocated to the spouse who was required to report that income for federal income tax *19purposes.2 The statute thus proceeds on the assumption that child support should be calculated on the basis of each party’s income immediately before the divorce.

¶14In most cases, this is a perfectly reasonable assumption. It is not reasonable at all, however, where an income-producing asset is transferred from one spouse to another as part of the divorce. A few oversimplified examples will make the absurdity clear:

¶15(1) Suppose the parties’ sole source of income is a rental apartment building. The building is in the husband’s name and thus, on his most recent tax return, the income from it was his. Suppose that, as part of the divorce, the asset is divided equally between the parties—so that each will have the same income after the divorce. If income is allocated solely on the basis of the predivorce tax returns, one spouse will seem to have all the income and the other none—although their incomes are in fact exactly the same.

¶16(2) Suppose that the building is in the husband’s name prior to the divorce, but all of it is distributed to the wife as part of the divorce. She now has all the income. Yet, if she receives custody of the children, the “most recent tax return” approach requires him to pay her child support as though he had all the income and she had none.

¶17(3) Suppose the asset (say, in this case, stock in a closely held corporation) is in the wife’s name, so that all the income has been hers for federal tax purposes. Suppose that the asset is distributed to the husband upon divorce; this might occur if, for example, the husband had been actively involved in running the business and the wife had not. Now the husband has all the income and the wife has none. Assuming that the wife gets custody of the children, the wealthy husband will pay the penniless wife nothing in child support.

¶18These extreme hypotheticals may rarely be encountered, but a less extreme version of the same anomaly will occur in many cases, and has occurred in this one. The court awarded plaintiff, in substance, 35% of the “marital” portion of defendant’s medical license, yet child support is calculated as though the defendant still owned 100%. The effect in this case is significant, *20though not huge; by my calculation, it inflates the child support award by some $7,000 per year. Much more troubling, the majority opinion sets a precedent that seems to require mechanical application of the “most recent tax return” rule in every child support calculation, even where the results are as bizarre as those in the hypotheticals I offered above.

¶19The only justification offered by the majority for this rule is that the statute requires it—and, if the statute had no escape clause, the majority would be right. The authors of the CSSA apparently failed to anticipate the need to reallocate income where income-producing assets are transferred. The authors were wise enough, however, to realize that they could not anticipate everything—and therefore the statute does have an escape clause that seems to have been written precisely to avoid results like the one the majority reaches today.

¶20Under Domestic Relations. Law § 240 (1-b), the noncustodial parent must pay his or her “pro-rata share of the basic child support obligation,” based on “income” as defined in the statute, “[ujnless the court finds that the non-custodial parent’s] pro-rata share of the basic child support obligation is unjust or inappropriate” (id. ¶ [f] [emphasis added]). Thus, the statute expressly authorizes departure from the statutorily calculated “pro-rata share” where a failure to depart would produce an “unjust or inappropriate” result. The statute lists 10 “factors” to be considered in making a departure, of which the first is: “[t]he financial resources of the custodial and non-custodial parent, and those of the child” (id. cl [1]). Where an income-producing asset changes hands as part of the divorce, the “financial resources” of one party are greater, and those of the other are less, than the statutory formula assumes. If this is not an instance where the parties’, “financial resources” render the “pro-rata share” as calculated by statute “unjust or inappropriate” I find it hard to imagine what such a case would be.

¶21In Goodman v Goodman (195 Misc 2d 204 [Sup Ct, Nassau County 2003]), the court recognized the applicability of the CS-SA’s escape clause to this kind of case. Goodmanheld that, in calculating child support, “the income from a distributive award for enhanced earnings capacity should be attributed to the non-titled spouse and be reduced from the income of the titled spouse” (195 Misc 2d at 204-205). The Goodmancourt relied on our decisions in McSparron v McSparron (87 NY2d 275 [1995]) and Grunfeld v Grunfeld (94 NY2d 696 [2000]), cases discussing the relationship between equitable distributions under the O’Brienrule and maintenance awards.

¶22*21In McSparron, we said that “[t]he courts must... be meticulous in guarding against duplication in the form of maintenance awards that are premised on earnings derived from professional licenses” (87 NY2d at 286). In Grunfeldwe held that to use the same income as a basis for a distributive award and an award of maintenance is impermissible double counting. “To allow such duplication would, in effect, result in inequitable, rather than equitable, distribution” (94 NY2d at 704). The majority today distinguishes McSparronand Grunfeldon the ground that child support, unlike maintenance, is governed by a statutory formula. But since the CSSA specifically provides for departure from its formula when adherence to it would be “unjust or inappropriate,” I agree with the Goodmancourt that the common sense underlying McSparronand Grunfeldshould be applied in the child support context as well.

¶23The injustice of a wooden application of the statutory formula where an income-producing asset has been distributed is so blatant that it was recognized in this case by plaintiffs own expert witness. John R. Johnson, a valuation expert, testified that while he knew that “duplication within the context of child support” was, legally, an open question, “I feel intellectual honesty would suggest we still have only one income stream.” He testified that “the only way to really equitably determine the relative child support obligation” would be to make an adjustment taking account of the equitable distribution. In his child support calculation, he reallocated to plaintiff—the party who employed him—the portion of defendant’s income that would in effect be distributed to plaintiff upon the divorce. Today, the majority concludes that such a reallocation, however clearly “intellectual honesty” compels it, is forbidden by the CSSA.

¶24The majority completely fails to explain, however, why the CSSA’s “unjust or inappropriate” escape clause should not be invoked here. It is obvious, and the majority does not dispute, that the parents’ “financial resources”—the first factor that Domestic Relations Law § 240 (1-b) (f) directs the court to consider—are materially different from what the statutory formula assumes them to be. This necessarily implies that, in the words of section 240 (1-b) (f), the “non-custodial parentfs] pro-rata share of the basic child support obligation is unjust or inappropriate.” The facts relied on by the majority—including the family’s frequent vacations and the daughter’s private music lessons (majority op at 14)—do not affect this conclusion.

¶25*22The majority never comes to grips with the conceptual error inherent in using a statutory formula based on the parties’ predivorce income where an income-producing asset is transferred as part of the divorce. The issue here is not, as the majority puts it, whether “to make distributive awards deductible from one parent’s income and includable in the other’s” (majority op at 12). It is whether to reallocate—not deduct—the income that accompanies a transferred income-producing asset—whether that asset is a medical license or an apartment building. The court in Goodmancharacterized this issue correctly:

“[w]hile the appropriate deductions to determine the correct level of child support, as elucidated above, are contemplated and authorized by case law and statutory authority, the income reallocation discussed here is not part of a ‘deductibility issue’— rather, it is a mathematical reallocation of income from one parent who gives, to the other parent, who receives, in the form of a distributive award for enhanced earnings. The appropriate public policy concern, thus, is not the preclusion of income from which to award child support—this will not happen here at all. Rather, the appropriate and real focus is the reassignment of income between the parents and the court’s proper recognition and treatment of it, to calculate and determine each of the parents’ correct income and appropriate ‘pro rata’ share of the child support obligation. (See, Domestic Relations Law § 240 [1-b] [f].)” (195 Misc 2d at 208-209.)

¶26Because the majority does not recognize the special problem raised by the equitable distribution of an income-producing asset, it lists reasons why defendant’s “proposed methodology would be unworkable in many instances” (majority op at 12) that are simply wrong. Contrary to what the majority seems to think, no one is proposing that every equitable distribution be deducted from the income of the paying spouse for child support purposes. The logic of defendant’s argument, which I think is correct, applies only where an asset is distributed that is the source of a material portion of either party’s predivorce income. If the distributed asset is not income-producing—if it is a house the parties live in, or an automobile or jewelry—the issue of reallocating income does not arise. But if the asset in question is income-producing, reallocation is necessary whether the asset *23is distributed in kind or by payment of its value in cash, and whether the distribution is made all at once or over a period of years. It is not the distributed asset itself (e.g., an apartment building) that should be reallocated; it is the resulting income (the rent the building produces). (In the O’Briencontext, the distinction between the “asset” [the license] and the “income” [the money earned by virtue of the license] can be confusing, because, except in matrimonial law, a professional license is not usually thought of as an “income-producing asset.” But, as mentioned above, this kind of “asset” should not be treated differently than an apartment building or a share of stock.)

¶27In holding that the CSSA forbids reallocation of income where an income-producing asset is equitably distributed, the majority needlessly renders the statute rigid and irrational.

¶28Ill

¶29The parties in this case were married for 19 years before divorce proceedings began. Defendant was a doctor for more than 16 of those years, and by the time of the divorce was earning an annual income of approximately $180,000. No suggestion was made by either party that that sum does not fully reflect the value of his medical license, or of other credentials he obtained in the early years of the marriage. In other words, this is not a case where one party made sacrifices to put the other through school, but was prevented by divorce from enjoying the resulting benefits. The benefits of the sacrifices both parties made have been enjoyed by both of them for more than a decade, and are fully reflected in defendant’s current income.

¶30Supreme Court nevertheless felt compelled to apply our decision in O’Brien, which held that a medical license is an “asset” subject to equitable distribution. It did this by dividing defendant’s $180,000 income into an “asset” portion and an “income” portion, and awarding plaintiff a percentage of both. In principle, this was a largely useless but harmless exercise. In light of a number of complicating factors, however, applying O’Briento this and similar cases is worse than useless. I therefore think we should hold that the application of O’Brienis restricted to cases where its application produces some significant benefit.

¶31The prototype of such a case is O’Brienitself. Michael and Loretta O’Brien were married for nine years. At the beginning of the marriage, he had not yet obtained his bachelor’s degree. During the marriage, he obtained that degree, took premedical *24courses, went to medical school, completed his internship and obtained a license to practice medicine. His wife helped him to become a doctor by giving up her own opportunity to obtain a professional certification, working in various jobs and contributing her earnings to their joint expenses. Two months after getting his license, he began an action for a divorce. While his income at that moment was apparently meager, his medical license had created sufficient “enhanced earning potential” that an expert was able to value the license at $472,000 (66 NY2d at 582).

¶32O’Brien, in short, presented what the Appellate Division in that case called “the classical ‘student-spouse, working-spouse’ syndrome” (O’Brien v O’Brien, 106 AD2d 223, 231 [2d Dept 1985])—a situation which, the Appellate Division dissent noted, had been called “almost a cliche” (id. at 234 [quoting Washburn v Washburn, 101 Wash 2d 168, 173, 677 P2d 152, 155 (1984)]). This is a situation with which courts and commentators have struggled both before and since the O’Brien decision. Our solution in O’Brien was to hold that the medical license constituted “marital property,” and that a portion of its value could be paid to Loretta O’Brien as a distributive award.

¶33In O’Brien we became the first state court of last resort to hold that a professional license is marital property, though the Supreme Court of Iowa had previously come close to doing so (In re Marriage of Horstmann, 263 NW2d 885 [Iowa 1978]). Some may have hoped that O’Brien would begin a trend; if so, those hopes have been disappointed. In 19 years, not one other state has adopted the O’Brien rule,3 and Iowa seems to have backed away (In re Marriage of Francis, 442 NW2d 59 [Iowa 1989]). In the other 49 states, a professional license is not itself an asset subject to equitable distribution, although in many states the enhanced earning capacity reflected by a license may be considered in awarding alimony or maintenance, or in distributing other assets (see e.g. Downs v Downs, 154 Vt 161, 574 A2d 156 [1990]; In re Marriage of Olar, 747 P2d 676, 680-681 [Colo 1987] [en banc]; Drapek v Drapek, 399 Mass 240, 246, 503 NE2d 946, 950 [1987]; Mahoney v Mahoney, 91 NJ 488, 501-505, 453 A2d 527, 534-536 [1982]; DeWitt v DeWitt, 98 Wis 2d 44, 60-61, 296 NW2d 761, 769 [1980]).

¶34*25Comment on O’Brien in law reviews and legal journals has been mostly, though not unanimously, negative (see Heller, Letters to the Editor, Relief Needed From O’Brien, NYLJ, Dec. 11, 2002, at 2, col 6; Jacobson, The Numbers Racket—Enhanced Earning Capacity, 34 NY St Bar Assn Fam L Rev [No. 3] 7 [Fall/Winter 2002]; Davis, The Doctrine of O’Brien v. O’Brien: A Critical Analysis, 13 Pace L Rev 863 [Winter 1994]; Marnell, Outside Counsel, Treatment of Enhanced Earning Capacity As an Asset Under Equitable Distribution, NYLJ, Sept. 17, 1992, at 1, col 1; Batts, Remedy Refocus: In Search of Equity in ‘Enhanced Spouse/Other Spouse’ Divorces, 63 NYU L Rev 751 [1988] [all criticizing O’Brien’s holding or observing that it is extremely difficult to apply fairly]; but see Kelly, The Marital Partnership Pretense and Career Assets: The Ascendancy of Self Over the Marital Community, 81 BU L Rev 59 [Feb. 2001], and Willoughby, Professional Licenses as Marital Property: Responses to Some of O’Brien’s Unanswered Questions, 73 Cornell L Rev 133 [Nov. 1987] [both praising some principles in O’Brien]). Much of this commentary reflects a sense that whatever benefits in fairness may be gained from the O’Brien rule are outweighed by the complexities and uncertainties it introduces into matrimonial litigation.

¶35It may be doubted whether an innovation which has attracted so little imitation, and so little praise, will endure forever. However, I do not suggest that we should now overrule O’Brien. The potential for injustice in the “student-spouse/working-spouse” syndrome is very real, and O’Brien is an attempt to remedy it; it is an imperfect remedy, but no remedy would be perfect. I make now the more modest suggestion that O’Brien be applied only in those situations where there is a problem for O’Brien to remedy—not where O’Brien puts the parties and the court through a complex and largely empty exercise. This emptiness may be illustrated by the present case, where Supreme Court felt compelled by O’Brien to go through a process that may be analogized to rolling up a carpet, for no other purpose but to unroll it again.

¶36Plaintiffs expert, Johnson, divided defendant’s current earnings of $183,0004 into two parts: $69,000, which is what Johnson thought defendant would have earned without a medical license, *26and $114,000, the additional income the license brought him. Making certain assumptions about how long defendant would work, and taking taxes into account, Johnson then converted the $114,000 portion of defendant’s annual income to a present value of $874,000 (rolling up the carpet). Since the parties were married for 70% of the time when defendant was obtaining his license, Johnson found the value of the “marital portion” of the license to be $612,000. Supreme Court accepted Johnson’s $612,000 figure, and decided that plaintiffs “equitable share” of the license should be 35% or $214,200. After reducing this number to account for defendant’s conveyance of his interest in the marital residence, Supreme Court required defendant to pay the remaining sum, with interest, over a 15 year period (unrolling the carpet).

¶37Johnson determined that the remainder of defendant’s income—the $69,000 he would have received without a medical license, and the 30% of the remaining $114,000 that did not go into the computation of the “marital assets”—was “available for maintenance.” He suggested that the court award maintenance in the amount of $35,000—34% of the “available” income. The court accepted this suggestion, though it decided that maintenance should be reduced to $20,000 after five years.

¶38Thus, in oversimplified summary, an expert was paid to divide defendant’s income into two pieces so that the court could award approximately 35% of each piece, with both awards to be paid over a period of years. It would have saved considerable trouble, not to mention expert fees, simply to award as maintenance 35% of the whole thing. And although the summary is oversimplified, the omitted complexities furnish no good reason for applying O’Brien here, and some added reasons for not applying it.

¶39The first of these omitted complexities is that Supreme Court actually awarded less than 35% of defendant’s total income, because the maintenance percentage decreases after the first five years. Obviously, this adjustment did not depend upon the application of O’Brien-, if the court had awarded maintenance based on defendant’s entire income, it could have chosen percentages that would have produced an economically identical result. The same applies to the differences in duration between the O’Brien equitable distribution award (15 years) and the maintenance (for plaintiffs life or until her remarriage). If the court had awarded maintenance based on defendant’s total income, it could have chosen to change the amount of the award, or cease it altogether, at any point or points in time.

¶40*27Secondly, the distinction between maintenance and an equitable distribution complicates the tax picture, for maintenance is deductible to the paying spouse and taxable to the receiving spouse, while an equitable distribution is neither. Thus in this case, the combined effect of the court’s maintenance and equitable distribution awards was to award more than 35% of defendant’s after-tax income. Taxes are a factor that should be considered in setting the amount of any award, and Supreme Court’s opinion states that they were considered here. As long as the court takes tax impact into account, and as long as the parties pay the same effective tax rate, it should be possible to obtain identical after-tax results either by awarding maintenance or by awarding equitable distribution under O’Brim. In the (probably rare) case where the receiving spouse pays a higher effective tax rate than the paying spouse, the use of O’Brim will actually be tax efficient. But in the (probably less rare) situation where the paying spouse is taxed at a higher rate, O’Brim will have a perverse tax effect: by causing a portion of the annual payments to be characterized as “equitable distribution,” O’Brien will enrich the government, by foreclosing an opportunity to move taxable dollars from the party with the higher tax rate to the party with the lower one.

¶41Thirdly, in light of the anomaly discussed in part II of this dissent, the application of O’Brien distorts the child support calculation. The majority holds (I think incorrectly) that the CSSA forbids the reallocation, for child support purposes, of the income on which an O’Brien award is based. If the same amount is distributed as maintenance, the effect of the CSSA is less harsh: the statute permits deducting maintenance from the husband’s income for child support purposes, though it does not permit adding it to the wife’s (Domestic Relations Law § 240 [1-b] [b] [5] [vii] [C]).

¶42Fourthly, a multiyear equitable distribution under O’Brien, unlike an award of maintenance, does not cease at the recipient’s death or remarriage. It is possible to debate in particular cases whether, from the point of view of fairness, this is an advantage or disadvantage of the O’Brien approach. I do not think it will always be an advantage. In this case, for example, if the parties had remained married, and plaintiff had happened to predecease defendant, her estate would have had no claim on his medical license, or the income derived from it. I do not see why divorce should change that. But even assuming that, in many or most cases, this feature of the O’Brien approach produces a more just *28result, I do not think the peripheral advantage thereby gained is worth the trouble. Where a court thinks the risk of injustice, in the event of death or remarriage, is significant in a particular case, devices much less cumbersome than O’Brien are available to mitigate the problem.

¶43Finally, it may be said that in characterizing annual payments to an ex-spouse as maintenance, rather than a distributive award, the courts deny the recipient’s status as “partner.” The theory is that, to use this case as an example, plaintiffs contributions to defendant’s attainment of his medical license make her equitably a 35% partner in the marital portion of that asset, and thus it is symbolically wrong to award her 35% of his income only as maintenance, rather than as something she owns. What is theoretically right or wrong in this area is a difficult, almost a metaphysical, question.5 I do not propose to debate that question here. I think it enough to say that the pursuit of a theoretical or symbolic goal does not justify the practical burden involved in following the circuitous and confusing O’Brien route to a result which will be, in practical terms, usually no better and often worse than a simple award of maintenance.

¶44For all these reasons, I believe that O’Brien should be limited to cases involving the “student-spouse/working-spouse” syndrome, or some reasonably analogous situation. O’Brien should not be used where, as here, the enhanced earning capacity associated with the professional license is already fully reflected in the license holder’s earnings.

¶45While the result I advocate would certainly involve a retreat from the broad language of O’Brien and other cases, I do not think it is inconsistent with any of our prior holdings. In particular, I believe it is consistent with our holding in McSparron, which rejected the doctrine, developed in some lower court cases, that the value of a professional license as an “asset” could be “merged” with the license holder’s professional practice. I acknowledge that the analytical underpinning of the “merger” doctrine was in some ways similar to the analysis in this opinion; the “merger” doctrine was based on the thought that a *29practicing professional will, in many cases, have realized the enhanced income that O’Brien was designed to capture, thus making the application of O’Brien unnecessary. We noted in Mc-Sparron that the “merger” doctrine “injects an artificial and unnecessarily confusing element into an already difficult assessment process” and that one “objection to the ‘merger’ theory is that it is difficult to apply” (87 NY2d at 284, 285). I do not propose to resurrect the doctrine of merger. Rather, I propose to recognize that, in a case like this one, O’Brien itself “injects an artificial and unnecessarily confusing element into an already difficult assessment process.”

¶46We noted in McSparronthat “in particular cases” the value of a professional license “may be nominal” (87 NY2d at 285-286). We quoted this language, italicizing the words “it may be nominal,” in our later decision in Grunfeld (94 NY2d at 704). Cases like this one, I believe, exemplify the point that an O’Brien analysis will sometimes add nothing of substance to deciding the appropriate award in a matrimonial case. Where that is true, O’Brien should not be applied.

¶47IV

¶48Accordingly, I would vacate the judgment below and remit the case for further proceedings consistent with the views I have expressed.

¶49Chief Judge Kaye and Judges G.B. Smith, Ciparick and Rosenblatt concur with Judge Graffeo; Judge R.S. Smith dissents in a separate opinion in which Judge Read concurs.

¶50Order affirmed, with costs.